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FIRST SECTION

CASE OF CIRINO AND RENNE v. ITALY

(Applications nos. 2539/13 and 4705/13)

JUDGMENT

STRASBOURG

26 October 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

CIRINO AND RENNE v. ITALY JUDGMENT 1

In the case of Cirino and Renne v. Italy,

The European Court of Human Rights (First Section), sitting as a

Chamber composed of:

Linos-Alexandre Sicilianos, President,

Kristina Pardalos,

Guido Raimondi,

Krzysztof Wojtyczek,

Ksenija Turković,

Armen Harutyunyan,

Jovan Ilievski, judges,

and Abel Campos, Section Registrar,

Having deliberated in private on 3 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 2539/13 and 4705/13)

against the Italian Republic lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms

(“the Convention”) by two Italian nationals, Mr Andrea Cirino (“the first

applicant”) and Mr Claudio Renne (“the second applicant”), on

14 and 21 December 2012 respectively. The second applicant died on 10

January 2017. On 13 June 2017 the second applicant’s daughter, Ms Gretel

Renne, expressed the wish to pursue the proceedings before the Court.

2. The first applicant was represented by Mr A. Ginesi and

Mrs S. Filippi, lawyers practising in Turin and Rome respectively. The

second applicant was represented by Mr M. Caliendo and Mr A. Marchesi,

lawyers practising in Asti and Rome respectively. The second applicant’s

daughter was represented by Mr M. Caliendo. The Italian Government (“the

Government”) were represented by their Agent, Mrs E. Spatafora.

3. Joint written observations were received from the Nonviolent Radical

Party, Transnational and Transparty, the association “Non c’è pace senza

giustizia” and the Italian Radicals (former Italian Radical Party), whom the

Section President had authorised to intervene in the written proceedings

(under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of

Court).

4. Relying on Article 3 of the Convention, the applicants complained of

having suffered violence and ill-treatment which they considered

tantamount to torture during their detention. They further submitted that

those responsible for the impugned conduct had not been appropriately

punished because in the course of the criminal proceedings the offences as

charged had become statute-barred. They added, in particular, that by

2 CIRINO AND RENNE v. ITALY JUDGMENT

refraining from classifying acts of torture as a criminal offence and laying

down adequate penalties for the latter, the State had failed to adopt the

requisite measures to prevent and punish the violence and other types of ill-

treatment of which they were complaining.

5. On 3 September 2015 the applications were communicated to the

Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The first applicant was born in 1978 and lives in Turin. The second

applicant was born in 1975 and was detained in Turin up to the time of his

death on 10 January 2017.

A. The events of December 2004

7. In 2004 the applicants were detained in the Asti Correctional Facility.

8. On 10 December 2004 the second applicant intervened in a fight that

had broken out between the first applicant and a prison officer.

9. The manner in which the impugned events occurred, as submitted by

the applicants and as it emerges from their witness statements during the

domestic proceedings, may be summarised as follows.

1. The first applicant’s account

10. On 10 December 2004, following an altercation with the prison

officer, the first applicant was summoned to a meeting with the correctional

unit commander (comandante di reparto della polizia penitenziaria). Before

he reached the commander’s office, he was stopped by a group of prison

officers, who took turns beating him. Following the meeting, he was

stripped of his clothes and led to a cell in the solitary confinement wing.

11. The only item of furniture in the cell was a bed with no mattress, bed

linen or covers. As to sanitary facilities, the cell had a squat toilet without

running water and was not equipped with a sink. The cell window had no

window panes and the only source of heating was a small, malfunctioning

radiator, which provided little protection against the December weather. For

a number of days, although it is unclear for how many exactly, he was left

naked.

12. During the first week of his detention in solitary confinement no

food was provided and he was given only scant amounts of water. He was

subsequently given rationed quantities of food.


13. He was beaten on a daily basis, several times per day. He was

repeatedly punched, kicked and hit in the head by prison officers, who

assaulted him in groups of varying sizes.

14. He was also subjected to sleep deprivation, as the beatings often took

place at night and the prison officers verbally abused him in order to keep

him awake.

15. During the detention in solitary confinement the applicant did not

receive visits from his lawyer or his family.

2. The second applicant’s account

16. On 10 December 2004, following the same altercation with the

prison officer, the second applicant was stripped of his clothes and led to a

cell in the solitary confinement wing of the correctional facility. The bed in

the cell had no mattress, sheets or covers, and the cell had no sink. Initially

there were no panes in the windows, which were covered with some plastic

sheeting after an unspecified number of days. For a number of days,

although it is unclear for how many exactly, he was left naked. He was

subsequently given some light clothing.

17. The applicant’s food was rationed, and at certain times he was given

only bread and water. On some days he received no food at all.

18. The applicant was beaten by prison officers, often more than once

per day. He was subjected to various forms of physical violence, including

being repeatedly punched, kicked and slapped, at one point with his head

being pinned to the ground by one of the prison officers’ boots. The

beatings occurred both during the day and at night. The applicant was

beaten by four or five officers at a time. One prison officer ripped out a

chunk of his hair.

19. On 16 December 2004 he was admitted to the hospital.

20. During the period he spent in solitary confinement he was only

allowed outside the cell twice, once to shower and once for some outdoor

time.

B. Criminal proceedings against the prison officers

21. A criminal investigation into the impugned treatment was launched

in 2005. It was initiated when it emerged, in the context of covert

surveillance in an operation to investigate drug smuggling in the Asti

correctional facility, that a number of the prison officers had discussed the

ill-treatment inflicted on the applicants.

22. On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and

G.S., were committed for trial. They were charged with ill-treatment of the

applicants under Article 572 of the Italian Criminal Code (“the Criminal

Code”), in conjunction with Article 61 § 9 of the Criminal Code, a provision


which considers the commission of an offence by a civil servant abusing his

or her position to be an aggravating circumstance.

23. On the same date the applicants joined the proceedings as civil

parties.

1. Proceedings before the Asti District Court

24. The Asti District Court’s judgment was delivered on 30 January

2012. Its findings may be summarised as follows.

25. As to the establishment of the facts concerning the ill-treatment, the

court found that the evidence gathered during the investigation and

produced at the trial showed that the events had occurred in the manner

described by the victims in their submissions during the trial. The Court

relied on statements to the effect that the applicants had been subjected to

physical and verbal abuse, coupled with the deprivation of food, water,

sleep, and clothing, and had been detained in cells without adequate access

to sanitation, heating, and bedding.

26. The court further found it to be established beyond reasonable doubt

that the applicants had been subjected not merely to isolated acts of

harassment and abuse, but to repeated ill-treatment which had been put into

practice in a systematic manner.

27. More specifically, the court found it established beyond reasonable

doubt that the first and second applicants had been subjected to repeated

physical violence from 10 to 29 December 2004 and from 10 to

16 December 2004 respectively. The court found that the beatings occurred

regularly at all times of the day, and particularly at night.

28. The court noted that the second applicant had been admitted to the

emergency room of the Asti Civil Hospital on 16 December 2004 with

traumatic injuries. With regard to the first applicant, the court acknowledged

his hospitalisation following the events without citing a date or specific

medical documentation to this effect.

29. Moreover, the court found it to be established beyond reasonable

doubt that in 2004 and 2005 in the Asti Correctional Facility there had

existed what it defined as a “generalised practice of ill-treatment” that had

been systematically inflicted on prisoners considered to be problematic.

Measures which the court defines as exceeding the bounds of permitted

disciplinary or security measures were routinely taken to punish and

intimidate problematic detainees and to deter other disorderly behaviour. As

part of this practice, a detainee would generally be taken to a cell in the

solitary confinement unit where he would be subjected to repeated

harassment and abuse by prison officers. The abuse would primarily take

the form of physical violence, as detainees would be beaten by groups of

prison officers, often during the night. In addition, detainees would be

routinely subjected to sleep, food and water deprivation, and would also be

denied access to sanitary facilities.


30. The court further found ample evidence that the prison officers

operated in a climate of impunity. This was due, in the court’s view, to the

acquiescence of high-level prison administrators and the complicity that

existed among prison officers.

31. It emerges that the court ordered an inspection of the correctional

facility, including the solitary confinement wing, during the course of the

trial. The court found that several cells in the solitary confinement wing of

the Asti Correctional Facility were unfit for holding detainees. Some did not

have bed linen, mattresses, sanitary facilities or heating. Although the

windows in some cells had no panes and others had windows covered by

metal plates with small perforations, the cells were nonetheless used during

the winter months. Some cells were equipped with a bed and a squat toilet

but no other furniture or sanitary facilities.

32. Following the establishment of the facts, the court went on to assess

responsibility for the established conduct. In this regard, G.S. was acquitted

as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted

of the charge of ill-treatment under Article 572 of the Criminal Code. The

court nonetheless held that the conduct of A.D. and D.B. amounted to

infliction of bodily harm contrary to Article 582 of the Criminal Code.

However, it ordered that the proceedings against them be discontinued due

to the expiry of the applicable time-limit as laid down in the statute of

limitations.

33. With respect to C.B. and M.S., the court held that there existed

sufficient evidence to conclude that they had been responsible for most, if

not all, of the acts of physical, psychological, and “material” abuse at issue.

The court then considered that the acts at issue could be classified as torture

pursuant to the definition provided by the United Nations (UN) Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. It went on to observe that Italy had failed to incorporate the

offence of torture into national legislation, in breach of its international

obligations. It was therefore obliged to conclude that, under Italian law,

there existed no legal provision that would allow it to classify the impugned

conduct as acts of torture.

34. Having taken note of the above-mentioned considerations, the court

proceeded to assess which existing offence was more suitable in respect of

the legal classification of C.B. and M.S.’s conduct. When conducting its

assessment, the court relied on the conclusion that the primary purpose of

the impugned treatment was to punish the applicants, to “maintain order” in

the correctional facility, and to convey a clear message to the other

detainees.

35. The court considered that the conduct of the two prison officers thus

fell most appropriately within the scope of Article 608 of the Criminal

Code, which deals with abuse of authority against arrested or detained

persons. However, the statutory limitation period for the offence in question


had elapsed, as the court had found no procedural action which would have

the effect of interrupting it.

The court stated that C.B. and M.S. were also responsible for the

infliction of bodily harm, but that, as the statute of limitations was

applicable to that offence as well, such a finding did not alter the substance

of the decision. The court therefore ordered that the proceedings against

C.B. and M.S be discontinued because the applicable time-limit as laid

down in the statute of limitations had expired.

2. Proceedings before the Court of Cassation

36. On 22 February 2012 the public prosecutor lodged an appeal with

the Court of Cassation, arguing that the Asti District Court had erred in the

legal classification of the offence with respect to C.B. and M.S. The

prosecutor contended that the most appropriate offence for the purposes of

classification of the conduct in question would have been aggravated

ill-treatment under Article 572 of the Italian Criminal Code ‒ as initially

identified in the bill of indictment ‒ in conjunction with Article 608 of the

Criminal Code.

37. By a judgment issued on 21 May 2012, and filed with the court

Registry on 27 July 2012, the Court of Cassation declared the public

prosecutor’s application inadmissible. The court expressed its agreement

with the prosecutor’s contention as a matter of principle but, as the statute of

limitations had been likewise applicable to the offence of aggravated

ill-treatment, a decision in favour of the prosecution would have been

devoid of any practical effect.

3. Subsequent proceedings

38. On 26 July 2012 C.B. lodged an objection to execution (incidente

d’esecuzione) with the Asti District Court, arguing that its decision of

30 January 2012 (see paragraph 24 above) could not be considered as final

and binding insofar as he was concerned, as the decision had not been

properly served on him.

39. In a decision issued on 31 October the Asti District Court dismissed

C.B.’s objection on the grounds that C.B. must have had cognisance of the

decision at the moment the public prosecutor lodged an appeal with the

Court of Cassation (see paragraph 36 above) or, at the latest, when his

representative filed a defence brief at a hearing before the Court of

Cassation in May 2012.

40. On 26 July 2012 C.B. appealed against the decision before the Court

of Cassation.

41. In a judgment delivered on 11 July 2013, and filed with the Registry

on 1 August 2013, the Court of Cassation granted the appeal. It found that

the failure to serve the decision on C.B. could not be remedied by C.B.’s


potential knowledge of the decision at a later stage, as argued by the District

Court. The Asti District Court judgment of 30 January 2012 could not,

accordingly, be considered final and binding insofar as C.B. was concerned.

42. Based on the latter decision, on 10 October 2013 C.B. lodged an

appeal against the Asti District Court judgment of 30 January 2012 with the

Turin Court of Appeal, seeking an acquittal.

43. No further information has been provided by the parties as to the

outcome of the proceedings.

C. Disciplinary proceedings against the prison officers

44. In their observations of 31 March 2016, the Government indicated

that four prison officers had undergone disciplinary proceedings in

connection with the impugned events and by different decisions issued on

29 January 2013 the following disciplinary sanctions had been imposed:

– C.B. was dismissed from his functions (destituito dal servizio).

He was, however, reinstated on 26 November 2013, following the Court of

Cassation judgment of 11 July 2013 which suspended the binding nature of

the Asti District Court’s judgment (see paragraph 41 above);

– M.S. was dismissed from his functions;

– A.D. was suspended from duty for a period of 4 months;

– D.B. was suspended from duty for a period of 6 months.

45. According to a document issued by the Staff Director of the Prison

Administration Department of the Ministry of Justice on 12 October 2015,

and furnished by the Government, the four prison officers were not

suspended from duty (sospensione precauzionale dal servizio) during the

course of the investigation or the trial.

D. Medical documentation

46. At the Court’s request, the Government submitted extracts from the

prison medical record of the second applicant between 26 November 2004

and 5 March 2005 and typed copies of his hospitalisation record of

16 December 2004.

47. The prison medical record indicates that on 13 December 2004 the

second applicant was examined visually (whilst still “behind bars”). He

complained of pain in the thoracic area and right ear. The reporting

physician noted the presence of ecchymoses and haematomas around the

patient’s ribcage. He recommended a more thorough medical examination

and/or transfer to the infirmary.

48. The record further indicates that another visual examination (also

“behind bars”) took place on 15 December 2004. The information in this

entry is the same as in the previous entry. Transfer to the infirmary for a

medical examination was recommended.


49. On 15 December 2004 the record shows that the applicant underwent

a medical examination in the afternoon. The physician reported ecchymoses

on the patient’s ribcage and in the retroauricular region. Palpation of the

patient revealed diffuse pain. The reporting physician recommended that

X-rays be performed for a suspected fracture. Painkillers were administered.

50. The entry of 16 December 2004 reports the applicant’s transfer to

the emergency room of the Asti Civil Hospital as a consequence of

traumatic injury.

51. According to the medical record of the Asti Civil Hospital, an X-ray

revealed a fractured rib and the medical examination disclosed diffuse

bruising in the thoracic and abdominal area and pain on palpation. The

record states that the applicant told the doctor his injuries occurred as a

consequence of an accidental fall.

52. The prison medical record entry on the applicant’s discharge from

the hospital on 16 December 2004 shows that he was prescribed painkillers.

53. As to the first applicant, no copy of the prison medical register had

been submitted by the Government, notwithstanding the Court’s request for

such information.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant offences as provided by the Italian Criminal Code

54. Article 572 of the Italian Criminal Code (hereinafter “the Criminal

Code”) provides that anyone found guilty of ill-treating a member of his or

her family, a child under fourteen years of age, or a person under his or her

authority or who has been placed in his or her care or custody may be

sentenced to a term of imprisonment of up to five years.

55. Article 582 of the Criminal Code provides that anyone who causes

bodily harm to another person, resulting in that person’s mental or bodily

injury, may be sentenced to a term of imprisonment ranging from three

months to three years.

56. Article 608 of the Criminal Code provides that a public official who

subjects a detainee or a person in his or her custody to punitive measures

not provided for by law may be sentenced to a term of imprisonment of up

to thirty months.

57. Article 61 of the Criminal Code contains general provisions related

to aggravating circumstances. Article 61 § 9 provides that the commission

of an offence as the result of abuse of authority or by a public official in the

performance of his or her duties constitutes an aggravating circumstance.


B. Time-barring of criminal offences

58. The relevant domestic law provisions are set out in Cestaro v. Italy,

no. 6884/11, §§ 96-101, 7 April 2015.

C. Introduction of the offence of torture into the Italian criminal law

framework

59. On 5 March 2014 the Italian Senate approved a bill introducing the

offence of torture into the Italian legal system. The bill was subsequently

sent to the Chamber of Deputies for approval. The Chamber of Deputies

amended the bill and the text was returned to the Senate for reconsideration

on 13 April 2015. On 17 May 2017 the Senate approved the bill, with

further amendments, and the text once again returned to the Chamber of

Deputies for reconsideration. On 5 July 2017 the Chamber of Deputies

approved and adopted the final version of the bill. On 18 July 2017 the bill

entered into force as Law No. 110 of 14 July 2017.

THE LAW

I. JOINDER OF THE CASES

60. The Court considers that the applications should be joined, given

their related factual and legal background (Rule 42 § 1 of the Rules of

Court).

II. PRELIMINARY ISSUE

61. Following the second applicant’s death on 10 January 2017, his

daughter, Ms Gretel Renne, informed the Court of her wish to pursue the

application in her father’s stead (see paragraph 1 above).

62. In cases in which an applicant has died after lodging an application,

the Court has on previous occasions taken into account statements made by

the applicant’s heirs or close family members expressing their wish to

pursue the proceedings before the Court. For the Court’s assessment of the

person’s standing to maintain the application on behalf of a deceased, what

is important is not whether the rights at issue are transferable to the heirs but

whether the heirs could in principle claim a legitimate interest in requesting

the Court to deal with the case on the basis of the applicant’s wish to

exercise his or her individual and personal right to lodge an application with

the Court (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). The

Court has accepted that a next of kin or an heir may in principle pursue the


application, provided that he or she has sufficient interest in the case (see

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania

[GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court

reiterates that human rights cases before it generally have a moral

dimension and persons close to an applicant may thus have a legitimate

interest in ensuring that justice is done, even after the applicant’s death (see

Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR

2000-XII).

63. In view of the above, and taking into account the circumstances of

the present case, the Court accepts that the second applicant’s daughter has

a legitimate interest in pursuing the application. It will therefore – at her

request – continue dealing with the case. For convenience, it will, however,

continue to refer to Mr Renne as the second applicant in the present

judgment.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

IN ITS SUBSTANTIVE ASPECT

64. The applicants submitted that during their detention in the Asti

Correctional facility in December 2004, they had suffered acts of violence

and ill-treatment which they considered as amounting to torture. They relied

on Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.”

A. Admissibility

65. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 § 3 (a) of the Convention. It further notes

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

66. The applicants complained that they had been subjected to various

forms of ill-treatment during their detention in the Asti correctional facility

in December 2004.

67. The first applicant reiterated the assertion that he had been kept in

solitary confinement for more than twenty days, had been stripped of his

clothes and detained in a cell with no window panes in winter, in Northern


Italy, and that there had been no sink and neither covers nor a mattress on

the bed. He further stated that he had been subjected to sleep, food and

water deprivation as well as physical violence and verbal abuse.

68. He argued that the intention underlying the treatment was to punish

and intimidate him, as the treatment went well beyond security needs. This

latter point was reinforced, in the first applicant’s view, as the treatment was

carried out against a background of systemic ill-treatment existing in the

correctional facility, whereby detainees would be subjected to various forms

of ill-treatment that prison authorities and staff knew about but about which

they remained indifferent.

69. Furthermore, he submitted that even though many years had elapsed

since the impugned events, he still suffered from anxiety and depression and

had to take medication.

70. The second applicant, drawing on the reconstruction of events set

out in the first-instance decision, described the ill-treatment inflicted on

him, which consisted of repeated physical violence, including beatings and

his hair being ripped out, as well as detention in a solitary confinement cell

without clothing for a number of days and with his food being rationed.

71. As to the legal classification of the treatment, both applicants

reiterated that they had suffered acts of torture within the meaning of Article

3 of the Convention.

(b) The Government

72. The Government did not submit specific observations on the

substantive aspect of the complaint under Article 3.

2. The Court’s assessment

(a) General principles

73. The Court refers to the general principles concerning the substantive

limb of Article 3 as set out in Bouyid v. Belgium [GC], no. 23380/09,

§ 81-90, ECHR 2015 and, recently, in Bartesaghi Gallo and Others v. Italy,

nos. 12131/13 and 43390/13, § 111-113, 22 June 2017.

74. The Court reiterates, in particular, that in determining whether a

given form of ill-treatment should be classified as torture, consideration

must be given to the distinction, embodied in Article 3, between this notion

and that of inhuman or degrading treatment. As noted in previous cases, it

appears that it was the intention that the Convention should, by means of

such a distinction, attach a special stigma to deliberate inhuman treatment

causing very serious and cruel suffering (see, amongst many other

authorities, Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010). In

addition to the severity of the treatment, there is a purposive element to

torture, as recognised in the United Nations Convention against Torture,

which in Article 1 defines torture in terms of the intentional infliction of


severe pain or suffering with the aim, inter alia, of obtaining information,

inflicting punishment or intimidating (see, amongst many other authorities,

El-Masri v. the former Yugoslav Republic of Macedonia [GC],

no. 39630/09, § 197, ECHR 2012).

(b) Application of the general principles to the present case

(i) Establishment of the facts

75. The Court observes at the outset that the Asti District Court found

that the impugned events occurred in the manner described by the applicants

during the course of the domestic proceedings (see paragraphs 25-31

above). The Court sees no cogent reasons to call such findings into

question.

76. The Court further observes that the Government did not contest the

applicants’ factual submissions or deny that the events as described by the

applicants had occurred.

77. In view of the foregoing, and in the light of all the documentary

material in its possession, the Court finds it established that the applicants

were subjected to the treatment complained of.

(ii) Classification of the treatment inflicted on the applicants

78. It remains to be determined whether the impugned treatment can be

said to have attained the minimum level of severity to bring it within the

scope of Article 3 and, if so, how it is to be classified.

79. The Court will begin by assessing the severity of the treatment to

which the applicants were subjected. The Court reiterates that, according to

the findings of the domestic court, the first applicant was subjected to

repeated physical violence for nineteen days and the second applicant for

six days (see paragraph 27 above). With specific regard to the second

applicant, his medical records reveal that he sustained injuries and

complained about being in pain, and he was ultimately admitted to the

hospital with a fractured rib and widespread bruising (see paragraphs 28 and

51 above).

80. In addition to the physical suffering the applicants must have

endured as a consequence of the physical abuse, the Court considers that the

treatment may be regarded as having caused them considerable fear,

anguish and mental suffering. As an overarching consideration, the Court is

mindful of the fact that the treatment was inflicted in the context of the

applicants being in the custody of prison officers, and thus already in a

situation of vulnerability (see Bouyid, cited above, § 107). The applicants’

state of further isolation due to their placement in the solitary confinement

wing must have intensified their fear, anxiety, and feelings of helplessness.

81. The Court once again notes that the applicants were subjected to

physical abuse at all hours of the day and night for many consecutive days


(see paragraph 27 above). Moreover, the physical abuse was coupled with

extremely serious “material” deprivations, which must have inevitably

accentuated their suffering. In this latter respect, the applicants were

subjected to deprivations and rationing of food and water, and were detained

in cells with limited or no access to sanitary facilities, appropriate bedding,

or heating. The applicants were further subjected to additional gratuitous

acts, such as depriving them of their clothing, which must have entailed

elements of humiliation and debasement (see, mutatis mutandis, Hellig

v. Germany, no. 20999/05, §§ 52-57, 7 July 2011).

82. In the light of the foregoing, the Court considers that the treatment

sustained by the applicants may be characterised as “inhuman treatment

causing very serious and cruel suffering” for the purposes of Article 3 (see

Al Nashiri v. Poland, no. 28761/11, § 515, 24 July 2014).

83. In the Court’s view, the treatment was deliberate and carried out in a

premeditated and organised manner. In this connection, the Court notes that

the impugned treatment was not confined to one particular moment, namely

immediately following the fight between the applicants and the prison

officers. It has been clearly established that the applicants endured repeated

and sustained assaults and other forms of abuse and deprivations over a

number of days. In this connection, note should also be taken of the

conclusions reached by the domestic court, which found that the applicants

had been subjected not just to isolated acts of harassment and abuse, but to

what it defined as measures which had been put into practice in a systematic

manner (see paragraph 26 above).

84. The Court further considers that, for the purposes of its assessment

as to the deliberate nature of the treatment, the context in which the

treatment was inflicted is worthy of particular scrutiny. The domestic court

found evidence of the existence of a broader pattern of abuse in the

correctional facility at issue, which it labelled a “generalised practice of

ill-treatment” (see paragraph 29 above). It emerges from the domestic

court’s findings that “problematic” detainees were routinely exposed to

punitive measures that exceeded the bounds of permitted disciplinary or

security measures, consisting of placement in solitary confinement cells

which in themselves were in a deplorable condition, and where they would

be subjected to physical violence and material deprivations. The domestic

court highlighted the existence of such a situation in the Asti prison beyond

the events concerning the applicants, and provided an account of the

practices described above in the text of the judgment (see paragraphs 29 -

31 above).

85. The foregoing considerations also indicate the existence of a

purposive element underlying the impugned treatment, namely to punish the

detainees, to enforce discipline and to deter future disorderly behaviour in

the correctional facility (see paragraphs 29 and 34 above).


(iii) Conclusion

86. In view of the above, the Court is persuaded that the treatment to

which the applicants were subjected attained the level of severity required to

bring the impugned conduct within the scope of Article 3, and that it

amounted to torture.

87. There has accordingly been a violation of Article 3 of the

Convention in its substantive aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

IN ITS PROCEDURAL ASPECT

88. The applicants complained that they had suffered a further violation

of Article 3 in that the penalty imposed on those responsible for the acts of

which they were complaining had been inadequate owing, in particular, to

the time-barring in the course of the criminal proceedings. They emphasised

that by failing to introduce the offence of torture into the Italian legal

framework and to provide for an appropriate penalty for that offence, the

State had failed to take the necessary steps to prevent the ill-treatment which

they had suffered.

89. As regards the alleged shortcomings in the investigation deriving, in

particular, from the absence of an offence of torture in the Italian legal

system, the applicants also relied on Article 13 of the Convention, alone and

in conjunction with Article 3. However, the Court considers that it should

examine the issue of the lack of an effective investigation into the alleged

ill-treatment solely under the procedural limb of Article 3 of the

Convention.

A. Admissibility

90. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 § 3 (a) of the Convention. It further notes

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

91. The applicants submitted that, following the criminal proceedings,

the first-instance court had recognised the seriousness of the ill-treatment to

which they had been subjected, but that those responsible for that

ill-treatment had not been punished. This occurred because the offences


with which the prison officers had been charged pursuant to the Italian

Criminal Code had become time-barred during the criminal proceedings.

92. They submitted that the Italian legal framework had proved to be

inadequate for the purposes of punishing acts of torture and providing the

necessary deterrent effect to prevent similar violations from occurring in the

future. They contended that Italy must establish a legal framework capable

of protecting the rights enshrined in Article 3 of the Convention, and

criticised the Italian State for having failed to classify as offences all forms

of ill-treatment which constitute torture or inhuman or degrading treatment.

This was, moreover, contrary to Italy’s international commitments, in

particular those arising from the ratification of the United Nations

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment.

93. They thus concluded that the State had not taken the necessary steps

to prevent the acts of torture which they had suffered and to criminalise

them in an appropriate manner.

94. The second applicant observed, in particular, that the impossibility

of punishing those responsible for acts of torture as a result of the

shortcomings in the Italian system runs the risk of supporting a practices

that are widespread and nurturing a system that tolerates impunity.

95. As regards disciplinary proceedings against the prison officers, the

applicants acknowledged that disciplinary measures had been taken against

them. However, they observed that the evidentiary material submitted by the

Government reveals that the officers were not suspended from duty during

the investigation and the criminal proceedings.

96. In the light of the foregoing, the applicants alleged that the Italian

State had failed to comply with the requirements of Article 3 of the

Convention, namely to conduct an effective investigation into the acts of

torture to which they had been subjected and to mete out adequate

punishment to the perpetrators.

(b) The Government

97. The Government observed that the impugned conduct had been

closely examined by the Asti District Court, which had recognised the

responsibility of the prison officers.

98. The Government argued that both the judicial and disciplinary

proceedings against the officers, which had been aimed at uncovering the

full extent of the treatment inflicted on the applicants during their detention,

had demonstrated the Italian authorities’ willingness to identify and punish

the officers responsible for the impugned acts notwithstanding the

time-barring of the criminal proceedings.

99. They contested the applicants’ contentions regarding disciplinary

sanctions. In this respect, the Government stated that the imposition of

disciplinary sanctions occurs via proceedings which are subject to


procedural guarantees that are comparable to those applied in criminal

proceedings. The Government further observed that in the event of criminal

proceedings being conducted in parallel with disciplinary proceedings, any

final assessment as to the application of disciplinary sanctions and the

choice of the sanction concerned must be postponed until the conclusion of

the criminal proceedings. The Government pointed out that, in order to

answer for the acts perpetrated against the applicants, the prison officers had

been held to account before domestic criminal courts and administrative

bodies that are known for their seriousness and impartiality, and their

responsibility for the impugned events had been established in both sets of

proceedings.

(c) The third-party interveners: the Nonviolent Radical Party, Transnational

and Transparty, the association “Non c’è pace senza giustizia”, and the

Italian Radicals (the former “Italian Radical Party”)

100. The third parties took the view that Italy had failed to comply with

the international obligations arising from the United Nations Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. They invited the Court to take account of the fact that Italy had

ratified the latter instrument in 1989, thereby undertaking to introduce the

offence of torture into the Italian legal system. Notwithstanding this

undertaking, twenty-five years following the ratification, no legislation

criminalising torture had been adopted.

101. They also provided a comparative overview of the criminalisation

of torture in a number of European systems.

102. The third parties submitted that, in the absence of a specific offence

under Italian domestic law, the offences included in the Criminal Code did

not enable acts of torture to be adequately criminalised, thereby precluding

the imposition of appropriate penalties proportionate to the seriousness of

the acts in question.

103. The third parties further underlined that the Cestaro judgment

(cited above) had urged Italy to adopt general measures to address a

structural deficiency. They consequently stressed the need to fill a

legislative void insofar as the criminalisation of torture and inhuman or

degrading treatment is concerned.

104. Lastly, as regards the disciplinary proceedings, the third parties

reiterated, with reference, to the Court’s judgments Gäfgen v. Germany,

cited above, and Saba v. Italy, no. 36629/10, 1 July 2014, that where State

agents have been charged with offences involving ill-treatment, they should

be suspended from duty while being investigated or tried.


2. The Court’s assessment

(a) General principles

105. Where an individual makes an arguable claim that he has been ill-

treated by the State authorities, in breach of Article 3, that provision, read in

conjunction with the State’s general duty under Article 1 of the Convention,

requires by implication that there should be an effective official

investigation. The general principles which apply in determining whether

such an investigation was effective for the purposes of Article 3 were

restated by the Court in Cestaro (cited above, §§ 205-212).

(b) Application of the general principles to the present case

106. The Court notes at the outset that five prison officers were

prosecuted and tried in connection with the impugned events, although

ultimately no one was convicted on the grounds of the ill-treatment inflicted

on the applicants (see paragraphs 24 to 35 above). One officer was acquitted

of all charges and the offences for which the remaining officers were

prosecuted were all declared statute-barred in the course of the first-instance

proceedings (see paragraph 35 above).

107. In the Court’s view, and having considered all the material

available to it, the latter outcome cannot be attributable to delays or

negligence on the part of the domestic judicial authorities. While the Court

expresses some concern over the duration of the criminal investigation, it

notes that the applicants neither complained about nor provided any

evidence indicating unjustified delays on the part of the investigation

authorities. In any event, due to its findings set out in paragraph 111 below,

the Court does not find it necessary to enquire whether the investigation can

be considered as having been conducted with reasonable expedition.

108. As to the conduct of the domestic proceedings, the Court takes the

view that the domestic court cannot be criticised for having wrongly

assessed the seriousness of the charges against the accused (see, in contrast,

Saba, cited above, § 80) or for having used the legislative and punitive

provisions of domestic law to prevent the conviction of the prosecuted State

agents (see, in contrast, Zeynep Özcan v. Turkey, no. 45906/99, § 43,

20 February 2007).

109. The Court considers, rather, that the domestic court took a very

firm stance and in no way sought to justify or downplay the impugned

conduct. The domestic court made a genuine effort to establish the facts and

to identify the individuals responsible for the treatment inflicted on the

applicants. It cannot therefore be denied that the court at issue submitted the

case before it to a “scrupulous examination”, as required under Article 3 of

the Convention (see Cestaro, cited above, § 206).

110. However, the domestic court concluded that, under Italian law, at

the time of the decision there existed no legal provision that would allow it


to classify the impugned treatment as torture (see paragraph 33 above). The

court thus had to turn to other, existing offences, namely the provisions of

the Criminal Code relating to abuse of authority against detained persons

and the infliction of bodily harm (see paragraph 35 above). The latter

offences appear, in the Court’s view, incapable of addressing the full range

of issues ensuing from the acts of torture which the applicants suffered (see

Myumyun v. Bulgaria, no. 67258/13, § 77, 3 November 2015). Moreover,

they were also subject to statutory limitation periods, a circumstance which

in itself sits uneasily with the Court’s case-law concerning torture or

ill-treatment inflicted by state agents (see Cestaro, cited above, § 208 and

Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).

111. Based on the foregoing considerations, the Court considers that the

core of the problem resides not in the conduct of the domestic judicial

authorities but rather in a systemic deficiency which was characteristic of

the Italian criminal law framework at the material time, as had already been

identified in Cestaro (cited above, § 225). In the present case, this lacuna in

the legal system, and in particular the absence of provisions penalising the

practices referred to in Article 3 and, where appropriate, providing for the

imposition of adequate penalties, rendered the domestic courts ill-equipped

to perform an essential function, namely that of ensuring that treatment

contrary to Article 3 perpetrated by State agents does not go unpunished.

This, in turn, may be viewed as having had the broader effect of weakening

the deterrent power of the judicial system and the vital role it ought to be

able to play in upholding the prohibition of torture.

112. The Court is therefore led to the conclusion that the criminal

legislation which was applied in the instant case proved, as it did in Cestaro

(cited above, § 225), both inadequate in terms of its capacity to punish the

acts of torture in issue and devoid of any deterrent effect capable of

preventing similar future violations of Article 3.

113. Turning to the issue of disciplinary measures, the Court

acknowledges the Government’s observations to the effect that disciplinary

proceedings were conducted against four prison officers following the

conclusion of the criminal proceedings. In this respect, the Court does not

question the serious scrutiny to which the prison officers’ actions were

subjected to by the disciplinary bodies and notes that disciplinary measures

were imposed as a consequence (see paragraph 44 above).

114. Whilst acknowledging the importance of disciplinary measures – as

it has often recognised in its case-law (see Gäfgen, cited above, § 121, and

Saba, cited above, § 76) – the Court nevertheless considers that the

imposition of disciplinary sanctions alone cannot be considered an adequate

response by the authorities in cases involving acts in breach of one of the

core rights of the Convention as serious as the present ones. In this respect,

it reiterates that only a criminal prosecution is capable of providing the


preventive effect and dissuasive force required to fulfil the requirements of

Article 3.

115. Moreover, it is apparent from the material in the case file that the

officers were not suspended from duty during the investigation or trial (see

paragraph 45 above). The Court has frequently held that, in cases where

State agents have been charged with offences involving ill-treatment, they

should be suspended from duty while being investigated or tried (see

Cestaro, cited above, § 210). The Court stresses the particular significance

of such measures in a correctional context. In this connection, it emphasises

the importance of safeguards ensuring that persons who may have been the

victims of ill-treatment by State officials in custody ‒ who are already in a

state of particular vulnerability ‒ are not discouraged, whether directly or

indirectly, from lodging complaints or reporting ill-treatment.

116. Having regard to the foregoing findings, the Court concludes that

there has been a violation of Article 3 in its procedural limb.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

117. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

A. Damage

118. In respect of non-pecuniary damage each applicant claimed

100,000 euros (EUR) or any other amount the Court should find

appropriate.

119. The Government contested that amount.

120. Having regard to the seriousness of the violations of the

Convention of which the applicants were victims, and ruling on an equitable

basis, the Court finds it appropriate to award each applicant EUR 80,000 in

respect of non-pecuniary damage.

B. Costs and expenses

121. The applicants also claimed EUR 16,000 each for the costs and

expenses incurred before the Court.

122. The Government contested that amount.

123. According to the Court’s case-law, an applicant is entitled to the

reimbursement of costs and expenses only in so far as it has been shown

that these have been actually and necessarily incurred and are reasonable as

to quantum. In the present case, regard being had to the documents in its


possession, the Court considers it reasonable to award the sum of

EUR 8,000 each.

C. Default interest

124. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 3 of the Convention in its

substantive aspect in that the applicants have been subjected to torture;

4. Holds that there has been a violation of Article 3 of the Convention in its

procedural aspect;

5. Holds

(a) that the respondent State is to pay each of the applicants, within

three months from the date on which the judgment becomes final in

accordance with Article 44 § 2 of the Convention, the following

amounts:

(i) EUR 80,000 (eighty thousand euros), plus any tax that may be

chargeable, in respect of non-pecuniary damage;

(ii) EUR 8,000 (eight thousand euros), plus any tax that may be

chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amounts at a

rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;


6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 October 2017, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Linos-Alexandre Sicilianos

Registrar President

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